In my last article we discussed about what is a Living Will in the backdrop of the 2018 judgement of the Supreme Court, ‘Common Cause (a registered society) versus Union of India and Another’.
The judgement laid down what is the meaning of an Advance Medical Directive. Quoting Black's Law Dictionary the judgement stated that an advance medical directive is a legal document explaining one's wishes about medical treatment if one becomes incompetent or unable to communicate. A living will, similarly, is a document prescribing a person's wishes regarding the medical treatment the person would want if he was unable to share his wishes with the health care provider.
The judgement laid down that a competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. Where a patient has already made a valid Advance Directive which is free from reasonable doubt specifying that he/she does not wish to be treated, then such directive has to be given effect to.
Another type of advance medical directive is medical power of attorney. It is a document which allows an individual (principal) to appoint a trusted person (agent) to take health care decisions when the principal is not able to take such decisions. The agent appointed to deal with such issues can interpret the principal's decisions based on their mutual knowledge and understanding.
The 2018 judgement held that the Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner. The judges held, “We may hasten to add that Advance Medical Directive cannot operate in abstraction. There have to be safeguards. They need to be spelt out”.
The 2018 guidelines required the Living Will to be countersigned by a jurisdictional Judicial Magistrate of first class. The officer was further required to record their satisfaction that the document has been executed voluntarily and without fear or favour. The Judicial Magistrate would also preserve a copy of the document in both paper and digital formats. The Judicial Magistrate was required to forward a copy of the document to the registry of the jurisdictional District Court, which would have to retain the document in the original format and was further required to inform the immediate family members of the executor and their family physician, if any.
A copy of the advance directive had to be handed over to a competent official of the local government. The aforesaid authorities would then nominate an official as its custodian.
The above 2018 directives as to various matters, including the ones relating to “Living Will”, were found to be impractical in various aspects.
In view of the above, the Indian Society of Critical Care Medicine filed an application in the court for seeking clarification of the 2018 judgment. The application put forth the difficulties which were being encountered by a large number of doctors. The court observed that it has become absolutely necessary to revisit the directions so that this court puts in place a mechanism which effectively carries out the object of laying down the principles. This has resulted into passing of the latest judgement dated January 24, 2023. We will discuss the changes brought about by the latest judgment, in our next article.
The writer is a trained mediator and a member of the AMP. He can be reached at info@tijoriwalaco.com
